STEPHEN J. ISAACS, 859-252-5757, a Kentucky DUI Attorney with Isaacs Law Office, writes about defenses to Driving Under the Influence / DUI / DWI in Kentucky.

Law schools train attorneys in the laws generally. Yet as an attorney I have learned over the years that there is no substitute for practical experience achieved after years of working as a DUI, Criminal Defense, Wrongful Death, and Personal Injury attorney. This holds true in defending DUI cases. DUI cases involve a great deal of science in addition to understanding the basic governing rules and regulations and how they apply to a specific client's set of facts. Additionally, Client's may not adequately recall the events around their arrest. Officer's may not properly record pertinent facts supporting the driver's innocence. All together the rules and regulations as applied to the facts tend to make DUI cases very complex. Because of the complexity of the DUI cases many attorney's consider them to be among the most difficult to defend.

Because of this complexity at times attorneys make mistakes when it comes to defending DUI clients . . . mistakes potentially harmful to their clients resulting in loss of the client's driving license, having to pay significant fines, being sent to jail, having to pay huge increases in their insurance rates, and more.

To protect yourself and in order to make a knowledgeable decision in which attorney to hire, consider a few of the following mistakes I have observed made by other attorneys over the years:

Mistake 1 - The Attorney Advises You that the Case Can Not be Won

Let's be real and consider the underlying facts of why an attorney would inform a potential client or a client that their DUI case can not be won. It comes down to the initial intake and the attorney collecting and then understanding all of the facts of the case. I have come to believe that attorney's who do not spend time with the client at the onset in order to properly evaluating all of the evidentiary facts before recommending that the potential client just plead guilty is the single most important mistake the attorney may make when representing the individual for DUI.

In addition to my other practice areas, I’ve been practicing as a Kentucky DUI Defense lawyer since 1999. I typically spend no less than 45 minutes with potential clients collecting information about the traffic stop and the arrest at the beginning of every DUI representation. Let me repeat that: I spend no less than 45 minutes with the potential client collecting facts! Yet I have received calls for second opinions or after their attorney had lost their case from individuals charged with DUI for second opinions where their attorney had recommended a guilty plea. On review of some of those cases where I picked up the representation I went ahead and obtained favorable outcomes for my clients. In my opinion, I have come to believe that after obtaining the police report and looking at the breath test results many lawyers simply advise their client to plead guilty without considering all of the facts which may prove a client's innocence. Some of those facts include errors made by the officer during the roadside standard field sobriety tests, known as SFST's. Other significant facts include the officer's failure to follow state laws and procedures during the collection of the blood, breath, and urine. Sometimes those facts support a finding that the officer was not being accurate in his reporting of the facts.

Then there are potential client's who decide to plead guilty to save money! I call these economic DUI guilty pleas. I do not like them. In reality this type of plea may cost the accused much, much, much more to plead guilty than to fight the DUI. Consider the fact that a DUI today will now remain on a person's driving and criminal history for at least ten (10) years. During that time period, insurance companies will see the DUI in the public record and may increase the rates. The DUI could affect the accused's future employment or prevent entry into the military. The DUI could also affect a person's ability to obtain or maintain a commercial driver's license. Plus, a DUI may prevent a person from traveling into some foreign countries such as Canada. And then there is the family impact. With so much at stake a person should not simply plead guilty to a DUI because they want to save money to avoid paying an attorney to defend them.

There are also other more serious problems with the economic DUI guilty plea. Every guilty plea must be made freely, knowingly, intelligently and voluntarily. If you believe you are innocent (except for cases where the accused does not admit guilt but believes the evidence against them strongly indicates guilt - usually when they had no recall due to impairment) and enter a guilty plea to a DUI you are not being truthful and therefore misleading the court. Additionally, attorney's who recommend such a plea for a low fee may be asking for a malpractice claim.

Mistake 2 - The Attorney Advises You Not to Bother to Fight the Pretrial License Suspension in DUI-1st Cases For Refusals

Another common error I have observed it attorney's who advise their client's to not conduct a refusal hearing because they do not believe that these hearing can be won or worth their time. A refusal hearing can be won. They can often be won based on defenses such as: 1) the refusal was not obtained within two hours of cessation of the operation of the vehicle; 2) the officer failed to read the Implied Consent warning to the driver; 3) the officer did not hear or listen to the accused agree to take the tests; 4) the officer based the refusal on the accused's actions and not words; and etc.

Importantly, by not conducting a refusal hearing the defendant doesn’t get to question the arresting officer. Why is this important? Because this may be the only time the lawyer may be able to question the arresting officer under oath soon after the arrest when the officer's recollection is likely to be accurate.

Mistake 3—The Lawyer Does Not Personally Check Out The Location of the Arrest

I visit the location of the arrest whenever practical or have client's provide me with photographs of the location. Yet it's been my experience that many lawyers don’t visit the arrest location. I believe this to be extremely important. Why? In order to collect evidence which shows the driver's innocence. On visiting the arrest locations I have found security cameras which recorded the stop, the roadside tests, and arrest. I have found debris, obstacles, and inclined pavement which made the roadside tests difficult to perform. I have found reflective surfaces and traffic patterns which interfered with the roadside tests. For example, in one case, the officer claimed that my client's vehicle was weaving on the road and that the road was straight when in fact after visiting the arrest location I discovered that the road was winding and not straight: from the officer's position some distance away he merely saw my client's vehicle following the winding road and erroneously stated my client was weaving. In another example, I used the photos of the scene of the arrest to point out to the officer who testified that he never lost sight of my client that there was a parking structure, dumpsters, a police Swat van, and more which blocked his view so he did loose sight of my client's vehicle at times.

Visiting the location of the stop and arrest simply makes it easier for your lawyer to ask probing questions about the roadside test, and, in some cases, point out a physical impossibility to the jury.

Mistake 4— The Lawyer Did Not Explain The Administrative Penalties Associated With a Conviction or a Guilty Plea

It's important that your lawyer explain to the client all of the penalties before the client decides to enter a guilty plea or before deciding to take a matter to trial. It is legal malpractice if the lawyer doesn’t advise the client about all of the penalties, including administrative sanctions, resulting from a conviction.

What are the administrative sanctions? They can include but may not be limited to: license suspension or revocation; license plate impoundment; requirement for a mandatory ignition interlock device; alcohol and drug assessment and treatment program; inability to travel to certain countries; home state license suspension which may be different than Kentucky's; and etc.

I find that this mistake is all too common. And it is important because every guilty plea must be made freely, knowingly, intelligently and voluntarily: not knowing this information may affect the client's rights.

Mistake 5— The Lawyer Did Not Offer the Defendant the Option to File A Motion to Suppress

A lawyer should file, after discussing this with the client and with the client's permission, a Motion to Suppress evidence when it appears that the officer violated the client's constitutional rights. Bringing this motion may result in the court ruling that certain evidence may not be used at the DUI trial. In some cases, the court may rule in the client's behalf which could result in a win of the client's case. However, it is important to note that the court may impose sanctions against the lawyer and client for filing a Motion to Suppress when the facts do not support such a motion.

According to some experts, not filing a Motion to Suppress when warranted prior to trial is a common mistake. It is a mistake as it is a missed opportunity to eliminate some or all of the State's evidence. Just as important, it also provides an opportunity to question the arresting officer and to lock in their testimony for later use at trial.

Additionally, a few Kentucky counties have special programs where the parties (prosecutor and defense attorney) may petition the court to set aside certain misdemeanor guilty pleas if the convicted person meets certain requirements, including the fulfillment of their sentence and payment of all fines. These programs typically apply when a person's career is at risk. Please contact your criminal defense attorney to learn about the availability of these programs.

A Missouri police officer stopped a motorist for speeding and crossing the centerline. Suspecting the motorist had been driving under the influence, and after the motorist declined to take a breath test to measure his blood alcohol concentration (BAC), the officer arrested the motorist and transported him to a nearby hospital for blood testing. Althought the motorist refused to consent for the blood test, the officer directed a lab technician to take a sample. The officer never attempted to secure a search warrant. The state argued there would not be enought time to obtain a search warrant because blood alcohol disappates over time. The blood test results indicated that the motorist’s BAC tested well above the legal limit. The officer charged the motorist with driving while intoxicated (DWI).

At the trial court, the motorist moved to suppress the blood test result, arguing that taking his blood without a warrant violated his Fourth Amendment rights. The trial court agreed, concluding that the exigency exception to the warrant requirement did not apply because, apart from the fact that motorist’s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency.

On appeal, the Missouri State Supreme Court agreed with the trial court, and held that a routine DUI investigation where no factors other than the natural dissipation of blood alcohol suggested that there was an emergency, and, thus, the nonconsentual warrantless test violated the motorist’s right to be free from unreasonable searches of his person. The Missouri State Supreme Court relied on Schmerber v. California in which the U.S. Supreme Court held that a DWI suspect’s warrantless blood test where the officer "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence’.

Missouri again appealed the matter to the U.S. Suppreme court, who, in Missouri v. MCNeely, stated that they agreed with the Missouri State Courts.

Few people charged with DUI realize that they have statutory rights under Kentucky's implied consent laws, KRS 189A.103 and KRS 189A.105, which can protect them from inappropriate police procedure when the police are attempting to obtain evidence of their impairment.

The arresting police officer must comply with this statute or find himself violating the accused person's statutory rights. According to KRS 189A.105:

At the time a breath, blood, or urine test is requested, the person shall be informed:

1. That, if the person refuses to submit to such tests, the fact of this refusal may be used against him in court as evidence of violating KRS 189A.010 and will result in revocation of his driver's license, and if the person refuses to submit to the tests and is subsequently convicted of violating KRS 189A.010(1) then he will be subject to a mandatory minimum jail sentence which is twice as long as the mandatory minimum jail sentence imposed if he submits to the tests, and that if the person refuses to submit to the tests he will be unable to obtain a hardship license; and

2. That, if a test is taken, the results of the test may be used against him in court as evidence of violating KRS 189A.010(1), and that if the results of the test are 0.15 or above and the person is subsequently convicted of violating KRS 189A.010(1), then he will be subject to a sentence that is twice as long as the mandatory minimum jail sentence imposed if the results are less than 0.15; and

3. That if the person first submits to the requested alcohol and substance tests, the person has the right to have a test or tests of his blood performed by a person of his choosing described in KRS 189A.103 within a reasonable time of his arrest at the expense of the person arrested.

KRS 189A.103 states in part that the breath tests, "shall have been performed . . . only after a peace officer has had the person under personal observationat the location of the testfor a minimum of twenty (20) minutes."

Additionally, the police officer must also provide the accused person with the opportunity to contact an attorney. KRS 189A.105 further states:

During the period immediately preceding the administration of any test, the person shall be afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes to attempt to contact and communicate with an attorney and shall be informed of this right.

After the accused person has complied with the police officers requests, then KRS 189A.105 further states:

Immediately following the administration of the final test requested by the officer, the person shall again be informed of his right to have a test or tests of his blood performed by a person of his choosing described in KRS 189A.103 within a reasonable time of his arrest at the expense of the person arrested. He shall then be asked "Do you want such a test?" The officer shall make reasonable efforts to provide transportation to the tests.

If the officer failes to follow the procedures set forth under Kentucky's Implied Consent laws, then any results the officer thereafter obtains may be suppressed.

Person's who believe their Kentucky Implied Consent rights have been violated should contact a Kentucky DUI attorney.

In Kentucky,
Police stop vehicles for many reasons, not just for suspicion of DUI.
But if you had been drinking or under the influence of a drug, then
you need to do several things to increase your chance of being found
innocent.

First, call a
criminal defense attorney if possible. Some officers will cooperate
with you and allow you to speak with an attorney if you inform the
officer that you need to understand your rights.

Listen to the
instructions from the officer and do not be rowdy, disruptive,
aggressive or physical towards the officer. Do not give the officer
grounds to arrest you because of your behavior. Be polite and
respectful (they will appreciate the respect and may return the
favor).

Do
as little as possible and do not volunteer information. You will have
to provide your name and present your drivers license, registration
and proof of insurance. But you can stop there. Note that anything
you say before the officer places you in custody can and probably
will be used against you. According to the court in Miranda v
Arizona, you have the
right to ask for an attorney and remain silent when in police
custody. Miranda applies ONLY if the officer asks you
questions when in police custody. Note that not all traffic stops
rise to the level of being in police custody: in these cases, the
police may ask you questions without having to invoke your Miranda
rights and then can use your statements as evidence against you. If
the officer follows procedure, they will probably write down
everything you say for the prosecutor to use. Therefore, be safe and
invoke your right to remain silent: you do not have to answer
questions such as how much you had to drink or if you had been
smoking marijuana. You do not need to confess to the officer that you
believe you are intoxicated or impaired.

Furthermore,
the officer may demand that you take several “field sobriety”
tests if the officer suspects you of driving under the influence. The
officer intends to collect evidence against you using the field
sobriety tests. The field sobriety tests commonly administered in
Kentucky include the walk and turn test, the one leg stand, the
horizontal gauze Nystagmus test, and a portable breath test.
However, in Kentucky, these tests are voluntary: you can refuse to
take these tests. A word of caution: be polite and respectful to the
officer should you decide to refuse these tests.

In
Kentucky an officer can arrest you based solely on his opinion as to
whether you drove the vehicle under the influence. Should the officer
decide to arrest you, they will transport you to a detention
facility. There exists a good chance that the officer will record
your voice during transit. Be aware of this fact and do not answer
any questions in the police cruiser. You need to remain calm and
quiet even if you believe the officer wrongly arrested you.

Once
at the detention facility, the officer will again request that you
submit to a test of your blood, breath or urine. All drivers
operating a vehicle in Kentucky impliedly consent to submit to these
tests. The officer should thereafter read you an implied consent
form, which essentially states that that you have 20 minutes or less
to contact an attorney for legal advice and that he will permit you
to obtain an independent blood test (at your expense) if and only if
you cooperate and submit to the requested blood, breath or urine
tests. Should you decide to refuse to take the test, Kentucky law
will presume guilt and increase the penalties levied against you
should you later decide to plead guilty or if a jury finds you
guilty. Remember, do not volunteer any information to anybody except
for your attorney. Some Kentucky jailers record all conversations
inside the detention centers and on the telephone. Any statements you
make against your interest may be used against you at a trial of the
matter.

The United States Court in Miranda
v. Arizona, 384 U.S. 436 (1966) held that statements made by a defendant during
interrogation and while in police custody are admissible at trial
only if the police had previously informed the defendant of his right
to counsel with an attorney before and during questioning and of the
right against self-incrimination before questioning by the police.
The prosecutor could thereafter use at trial any voluntary statements
made by the defendant. The Miranda court based its decision
on the Fifth Amendment right to counsel and the right to remain
silent.

On August 27, 2009 at 2:24 a.m., Lawrenceburg Kentucky police stopped a vehicle driven by the former University of Kentucky basketball coach Billy C. Gillispie and charged him with DUI, first offense.

According to police records, the Lawrencebug Police Department (LPD) received a report of a possible intoxicated driver driving a white four door car with Texas plates heading northbound on U.S. 127 near the bypass near the Bluegrass parkway. The LPD dispatcher sent officers to intercept the vehicle.

Upon observing a white Mercedes vehicle on the opposite side of the highway meeting the subject vehicle description, Officer Corley reported that he clocked the vehicle on radar at 63 mph in a 45 mph speed zone. Officer Corley turned around to pursue the vehicle and reported that he observed the white 2009 Mercedes C300 with Texas plates swerving across the fog and center lines, and alternating speed between 50 to 55 mph. After conducting a traffic stop, Officer Corley reported that the driver, Billy C. Gillispie, had a strong fruity smell coming from his person, had red glassy eyes, and slow slurred speech. Officer Corley reported that Mr. Billy C. Gillispie declined to take the field sobriety tests and portable breath test. Mr. Gillispie was thereafter arrested for DUI and transported to the Lawrenceburg Kentucky detention center. The records also indicate that Mr. Gillispie also refused tests of his breath and blood at the detention center.

Gillispie was arraigned later the same day. He entered a not guilty plea and was released on personal recognizance.

Billy C. Gillispie is known as the former coach of the University of Kentucky basketball team for the prior two basketball seasons. He is reportedly in town for negotiations to settle a lawsuit he brought against the University of Kentucky for breach of contract due to his dismissal by the University of Kentucky after two years into a seven year contract. The University of Kentucky alleges that no formal contract existed.

I have listed a few recent articles on other DUI Attorney websites of interest to readers of this website.

New York Attorney Anthony Colleluori, also known as "That Lawyer Dude", wrote an informative article entitled "Drinking and Driving Does Not Equal Driving While Intoxicated." He notes that in America the anti-alcohol lobby has done an excellent job of telling Americans, wrongly of course, that if you drink and drive, you're guilty of Driving While Intoxicated. This article helps to dispel this myth. Note, in Kentucky, Attorney Colleluori's article would not apply to drivers of commercial vehicles.

Another article well worth reading is by Texas DUI attorney Jamie Spencer, entitled "Is Refusing The Breath Test Consciousness Of Guilt In A DWI" (DUI). Mr. Spencer discusses how in Texas a person arrested for suspecion of driving under the influence is asked to provide evidence against themselves AFTER arrest by blowing into an Intoxilyzer breath test device under the theory that you they will be released if they blow under 0.08 BAC. However, Mr. Spencer states that when folks blow “under the legal limit”, the State proceeds on the alternate theory that they had lost the normal use of their mental and/or physical faculties - despite being under the “per se” limit of .08. Attorney Spencer goes on to ask the rhetorical questions of 1) isn’t refusing to take the Intoxilyzer actually evidence that you have not lost the normal use of your mental faculties? and, 2) if so, then why would anyone submit to an Intoxilyzer test unless they’ve literally had nothing to drink in the last twelve to twenty four hours?

Police often video various aspects of the arrest and booking of a person driving under the influence (DUI) or driving while intoxicated (DWI). Few people picked up for DUI / DWI ever see themselves as others see them. Even fewer realize they are being recorded by the police.

Defense attorneys have a difficult job when their client can not accurately recall events so as to assist in their defense. Alcohol and other intoxicants affect brain functions which affects thought processes, memory, and motor control. Fortunately, police video's are many times very helpful tools for Kentucky criminal defense lawyers. Based on the facts involved in each DUI case, these video's may show constitutional and / or procedural violations. If the video shows such a violation, then the skilled Kentucky criminal defense attorney will usually file a motion to suppress evidence in an attempt to get the Court to rule that a part or the entire police video is inadmissible at the DUI trial.

Click on the link to see a police video discovered on the Internet showing an individual believed to be under the influence of alcohol as he was given a breath alcohol test by a police officer at a police station. This is the type of video which would be detrimental to the defense of a DUI case, and one in which the criminal defense attorney would try to suppress.

In Kentucky, a defendant's refusal of an officers request to take an alcohol or drug test of the defendant's breath, blood, or urine is admissible in court. In the case of Commonwealth v Hager, the Court held that a refusal to take a blood alcohol test or a chemical test to determine blood alcohol level or drug content after being lawfully requested by a police officer is not protected by the privilege against self-incrimination. Such refusal can then be admitted by the Commonwealth at trial for operating a motor vehicle while under the influence of an intoxicant.

In Kentucky, there are six (6) aggravating factors which will cause the penalties for a DUI to double and makes mandatory the minimum jail sentence at each DUI level. The aggravating factors are as follows:

Operating a motor vehicle and:

Going 30 miles per hour above posted speed limit

Traveling in the wrong direction on a limited access highway

Causing an accident resulting in death or serious injury

having a blood or breath alcohol content of 0.15 or higher as measured within two hours of cessation of the operation of the motor vehicle

refusing to submit to any test or tests of one's blood, breath, or urine as requested by an officer

transporting a passenger under 12 years of age.

Kentucky statutes also do not allow the reduction of the penalties when an aggravating circumstance is present.

Note though that first offenders with no aggravating factors serve no mandatory jail time.

In Kentucky, the punishment for a person 21 or over convicted of a Third DUI Offense within 5 years include:

Penalties - $500 to $1000 fine and 30 days to 12 months jail, and court may order 10 days to 12 months community labor. Must serve minimum of jail and/or community labor. If aggravating circumstance present, mandatory minimum term of imprisonment shall be 60 days.

Costs and Fees - Court Costs, DUI Service Fee, Treatment Program Fee, County Fees, State Fees.

Operating motor vehicle (MV) in excess of 30 miles per hour above the speed limit;

Operating MV in wrong direction on limited access highway;

Operating MV that causes accident resulting in death or serious physical injury;

Operating MV while alcohol concentration in operator’s blood or breath is 0.15 or more as measured by test(s) of a sample of the operator’s blood or breath taken within 2 hours of cessation of operation of MV;

Refusing to submit to any test(s) [blood, breath, or urine] requested by officer having reasonable grounds to believe person was operating or in physical control of a MV in violation of KRS 189A.010(1); and

BE SEEN, BE HEARD!

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